## Facts

- Denise Hawkins and Darla Grese were unmarried partners in a long-term same-sex relationship.
- Grese became pregnant by artificial insemination and gave birth to B.G. in 2007; Hawkins did not adopt B.G., and the parties did not marry or enter a civil union.
- B.G. was raised in the parties’ shared home until their relationship ended in 2014; they then informally shared custody for about two years.
- Grese later terminated B.G.’s contact with Hawkins.
- Hawkins petitioned the juvenile and domestic relations district court for custody and visitation; that court awarded joint legal and physical custody and shared visitation, finding B.G. viewed both women as parents and that separation from Hawkins risked emotional and psychological harm.
- Grese appealed to the circuit court (ultimately litigating custody), which treated Hawkins as a non-parent, found the parental presumption favored Grese, and awarded Grese sole custody despite concern about potential harm to B.G. from separation.
- Hawkins appealed, asserting statutory error and constitutional violations under the Fourteenth Amendment.

## Issues

1. Whether Hawkins qualified as a “parent” under Virginia law despite lacking biological ties and not having adopted B.G.
2. If Hawkins was a non-parent, whether she rebutted the parental presumption favoring custody with the fit legal parent, Grese.
3. Whether Virginia’s parentage and custody framework, as applied, violated due process or equal protection, and whether Hawkins had standing to assert constitutional claims on B.G.’s behalf.

## Decision

- The Court of Appeals of Virginia affirmed the circuit court’s custody award to Grese.
- The court held Hawkins was not a legal parent because Virginia limits parentage to biological or adoptive relationships and does not recognize de facto parent status.
- As a non-parent, Hawkins did not prove “special facts and circumstances” sufficient to overcome the strong presumption favoring custody with a fit legal parent.
- The court rejected Hawkins’s due process and equal protection challenges, applying rational basis review and finding Virginia’s approach rationally related to legitimate state interests.
- The court held Hawkins lacked standing to assert B.G.’s constitutional rights where a guardian ad litem had been appointed to represent the child’s interests.

## Legal Principles

- In Virginia custody law, “parent” status generally arises from biology or legal adoption; functional or psychological parenting alone does not create legal parentage.
- A fit legal parent is entitled to a strong parental presumption in custody disputes; a non-parent may obtain custody only upon showing “special facts and circumstances” requiring departure from parental custody.
- Evidence of emotional harm from severing a non-parent relationship may be relevant to best interests but is not alone sufficient to displace a fit legal parent absent the requisite extraordinary circumstances.
- Challenges to Virginia’s nonrecognition of de facto parenthood and its parentage classifications are reviewed under rational basis absent a suspect classification or infringement of a recognized fundamental right in this context.
- Third-party standing to assert a child’s constitutional rights is limited, particularly when the child is independently represented by a guardian ad litem.

## Conclusion

The court affirmed sole custody for the biological mother, holding that a non-adoptive former same-sex partner was not a legal parent under Virginia law, could not overcome the parental presumption favoring a fit parent, and could not establish constitutional violations or standing to litigate the child’s constitutional claims.


Hawkins v. Grese, 809 S.E.2d 441 (Va. Ct. App. 2018)